The State Bar of California asked a probate court for an evidentiary hearing and a neutral medical examination to determine whether Thomas Girardi is, as his brother has claimed in court filings, incompetent and in need of a temporary conservator to manage his affairs.
The state bar’s Office of Chief Trial Counsel “is poised to file disciplinary charges against Girardi alleging that he has willfully appropriated client funds and refused to obey a court order,” but the state bar can’t move forward if he’s been declared incompetent, according to a March 12 motion.
“Given the legitimate questions regarding the veracity of the Petition and the serious consequences that would result from an inaccurate finding, further inquiry by this court is necessary,” the motion said.
A limited temporary conservatorship was granted in February. But it hasn’t stopped Girardi from participating in the state bar’s ethics investigation, according to the filing.
As recently as March 5, “Girardi requested to participate in a pre-filing settlement conference before a State Bar Court judge,” the motion said.
The filing notes that the petition for the proposed conservatee was filed only after he became “enmeshed in mounting legal troubles.”
It also says that the physician’s capacity declaration submitted in support of the petition seeking the appointment of a conservator is “materially incomplete.” It fails to indicate, among other things, whether the physician is currently treating Girardi, the bar says.
The “unusual timing and circumstances” of the request for the appointment of a conservator “call for further inquiry before deciding whether the petitioner has established by clear and convincing evidence that a conservatorship of Girardi is warranted,” the bar argues.
At no point during the disciplinary proceedings has Girardi “stated that he lacks capacity to participate and defend himself in the State Bar proceeding,” according to a declaration supplied by state Bar Interim Chief Trial Counsel Melanie J. Lawrence.
Girardi was notified of the state bar’s investigation on Dec. 10, shortly after he was called before Judge Thomas M. Durkin in the U.S. District Court for the Northern District of Illinois to explain his failure to forward to clients settlement funds from the litigation over the Lion Air crash of a Boeing 737 Max.
The pending petition for temporary conservatorship alleges that Girardi “suffers from dementia and is unable to care for himself.” In November, “Girardi was holding himself out as a legal expert and moderated a legal education panel with leading trial attorneys and presented on complex litigation strategy,” according to the bar’s motion.
The bar said that a video of the Nov. 21 panel, which it offered to provide the court, shows that Girardi was able to deliver “advice regarding how to conduct a jury trial and engaged conversantly with the four other attorney panelists.”
Girardi is represented by court-appointed counsel, Law Office of R.M. Anthony Cosio. His brother, Robert, who filed the petition for a temporary conservator, is represented by Sheppard, Mullin, Richter & Hampton LLP.
The case is Conservatorship of Girardi, Cal. Super. Ct., No. 21STPB00413, motion 3/12/21.